LAND USE LAWS AND HOW TO DEAL WITH POTENTIAL PROBLEMS

By: Lance T. Denha, Esq.

Laws affecting the use and possession of land itself fall under the umbrella of “land use laws.” Sometimes land you own may be used by someone who does not legally own or possess your land. This may include public entities, such as the government or city workers, or individuals who may frequent the land in a variety of settings, such as mail carriers, service workers, and even trespassers. There are special rules concerning land use. This article is intended to provide information and resources on a variety of land use matters, including easements, eminent domain, trespassing, and zoning.

Easements – Technically, an easement is defined as a “nonpossessory interest” in another party’s property. In other words, a neighbor may need access to a portion of your land but doesn’t necessarily want to have an ownership stake. And the landowner — who may not have a problem with his neighbor accessing his land — nevertheless wants to be sure he is not liable for any accidents that may occur on his property. An easement, therefore, is a legal process acknowledging another party’s limited use of one’s land.

For example, let’s say you purchase a vacation property on the beach, but the only way to access it is along a gravel road that cuts through your neighbor’s property. You can create an easement with your neighbor in order to use that road for the purpose of accessing your property. The easement document typically indicates the scope of this use.

Eminent Domain – The term eminent domain refers to the right of a government entity to take private property for public use, with payment of compensation for the land. Different government bodies have different criteria; but generally, it must be able to prove a compelling reason for its planned use. One of the more popular uses of eminent domain is for the building of freeways, but it must be for public (not private) use.

When the government takes land, it must compensate the original property owner fairly. A “fair” price would be comparable to what the property owner may fetch on the open market. Landowners may challenge the government’s purported “public use” argument, or argue for a better price.

Trespassing – To trespass is to enter someone else’s land without their consent. Trespassing isn’t always a crime (or actionable in a civil suit), such as in the case of deliveries or other situations where consent may be implied. In order for someone to be liable (either in civil law or criminally), there must be some level of intent. If land is fenced or there is a “no trespassing” sign, then it is assumed that a would-be trespasser knows it is private property.

Zoning – Most cities and other local municipalities regulate how a given parcel of land may be used through zoning laws. This is why office buildings are seldom located within residential neighborhoods, or why heavy industry (oil refining, for example) is not found next to shopping malls. Some areas are zoned for mixed uses, such as apartments, offices, and retail shops along a town center. Zoning regulations often change as cities and counties transform, or sometimes are changed in an effort to encourage more business activity or to make way for a special building project.

If you have questions about land use laws, as always there is no substitute for the advice of a qualified attorney.